About Me

I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

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Tuesday, March 07, 2006

FISA and Warrantless Surveillance: Then and Now

The Patriot Act's most controversial provisions concern electronic surveillance of individuals who threaten national security. But the act did not initiate this practice. The system of secret search and wiretap warrants, granted in a secret hearing by a group of federal judges, without notice to the target, was established 25 years ago by the Foreign Intelligence Surveillance Act.

FISA was passed because before 1978 authorities could conduct searches to stop threats to national security without any judicial warrants at all. No court has ever found FISA to be unconstitutional, and just last year a special panel of federal appeals court judges reviewed the Patriot Act's central modificationof FISA and unanimously found it constitutional.

Give up? That paragraph was written by none other than John Yoo (with co-author Eric Posner) in an op-ed published in the Wall Street Journal on December 9, 2003. As most of you who are reading this already know, John Yoo is reportedly the man who wrote the classified legal opinion in late 2001 justifying the administration's warrantless surveillance program. Based on recent reports, there is every reason to believe that Yoo's 2001 opinion justified circumventing FISA on the sole grounds that FISA unconstitutionally infringed upon the president's inherent authority under Article II.

In the op-ed, Yoo goes on to assure us that:

The Patriot Act represents a modest retrenchment from an overcautious interpretation of FISA, but nothing like the pre-1978 regime of warrantless searches.

And this:

Much of the rest of the Patriot Act contains similar common-sense adjustments that modernize existing laws, like FISA. FISA warrants, for example, are now technology-neutral; i.e., they allow continuing surveillance of a terrorist target even if he switches communication devices and methods.

So let's recap. In late 2003, just as the presidential primaries were heating up, Yoo assured us that 1) FISA was constitutional, 2) the Patriot Act had modernized FISA, making it capable of dealing with new technology and with the threat posed by terrorism, and 3) FISA protected Americans from from warrantless surveillance. But at the time this article was published, the Bush administration had been engaged in secret warrantless surveillance, in contravention of FISA, for over two years, and it had been doing so pursuant to a legal opinion drafted by Yoo.

Could the deceptiveness of the Bush administration on this issue be any clearer?